REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2127 OF 2009
Raminder Singh …….Appellant(s)
VERSUS
State of Punjab & Anr. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed against the final judgment and order dated
31.10.2008 passed by the High Court of Punjab and Haryana at Chandigarh in
Civil Writ Petition No. 1066 of 2006 whereby the High Court dismissed the
writ petition filed by the appellant herein against the office order dated
13.01.2006 by which the promotion of the appellant was cancelled and he was
reverted from the post of Research Assistant Grade B to Silt Observer.
2) Facts of the case need mention, in brief, infra to appreciate the
controversy involved in the appeal.
3) The appellant was recruited as Silt Observer in the year 1986 in
Irrigation and Power Research Institute, Amritsar, which is a Branch of
Public Works Department, Government of Punjab. At the time of his
appointment, his qualification was matriculation with Science subjects and
B.A. with Economics and Political Science. While working as Silt Observer,
the appellant was performing the duties of Research Assistant Grade B, as
per the directives of his superiors.
4) The State of Punjab promulgated the Punjab Public Works Department
(Irrigation Branch), Research Assistants’ State Service Class III Rules,
1956 (in short “the Rules”). The Rules, inter alia, provides three Grades
in the cadre of “Research Assistant” in Public Works Department (Irrigation
Branch), namely, Research Assistant Grade A, Research Assistant Grade B and
Research Assistant Grade C. Rule 10 with which we are concerned here deals
with the Method of Recruitment and appointment to various Grades of the
Service, which reads as under:
“10. Method of recruitment –
Appointment to the various grades of the Service shall be made-
(a) in the case of Research Assistants, Grade A:-
by promotion from amongst Research Assistants Grade B; or
by transfer of an official already in the service of the Government of a
State or of the Union; or
by direct appointment;
(b) in the case of Research Assistants, Grade B:-
by promotion from amongst Research Assistants Grade C; or
by transfer of an official already in service of the Government of a State
or of the Union; or
by direct appointment;
(c) in the case of Research Assistants, Grade C:-
by promotion from amongst Analysts or Silt Analysts or other ranks already
working in the Institute or Laboratories under the control of Institute,
provided the official so promoted is reported to be fit for research work
expected of Research Assistants and has worked in the Institute or
Laboratories for at least 5 years and has also passed the F.Sc. examination
of a recognized university; or
by transfer of an official already in service of the Government of a State
or of the Union; or
by direct appointment.
For promotion from Grade C to Grade B and from Grade B to Grade A, a
Research Assistant must have crossed the efficiency bar in the Grade from
which he is promoted.
Appointment to any post to be filled either by the promotion of officials
already in the Service or by the transfer of officials already in the
service of the Government of a State or of the Union shall be made purely
by selection and no official shall have any claim to such appointment as of
right.
Note : When any vacancy arises and the recruitment is to take place through
the Punjab Public Service Commission the method of recruitment shall always
be decided in consultation with them.”
5) In the year 1967-68, the State of Punjab abolished the post of
Research Assistant Grade C and it was merged in Research Assistant Grade B.
Despite merger of the post, Rules were not amended.
6) On 21.06.2001, respondent No.2 invited applications for filling up
the post of Research Assistant Grade B from amongst the cadre of research
staff working as Silt Analyst and other categories in the Irrigation
laboratories. The said invitation specifically mentions that the
officials, who are employed as Silt Analyst or Observer should be working
in the Institute or laboratories of the Department of Irrigation for at
least 5 years and has also passed F.Sc. examination or equivalent.
7) In response to the said invitation, the appellant submitted his
application without concealing any fact or qualification along with the
attested photocopies of his educational qualification certificates.
8) On consideration of his application and the experience, the Research
Officer, Chemistry Branch of the Irrigation and Power Research Institute,
Amritsar recommended the case of the appellant for being promoted as
Research Assistant Grade B. After consideration, the appellant was promoted
as Research Assistant Grade B on 14.12.2001 and accordingly his pay and
other allowances were also fixed. Since 14.12.2001, the appellant was
continuing to work as Research Assistant Grade B.
9) After the promotions, some complaints were received by the Punjab
Government regarding the promotion of the appellant as well as other
promotions made subsequently and the Under Secretary, Irrigation
Department, Government of Punjab asked for the detailed comments and
records from respondent No.2 regarding promotions made by him during the
period 2001-2002.
10) On 24.05.2002, respondent No.2 submitted detailed comments to the
Under Secretary whereby the promotions of the appellant and others were
explained.
11) On 10.10.2002, the Under Secretary, Irrigation Department, Government
of Punjab directed the appellant and seven other promotees to appear before
the Special Secretary, Irrigation Department, on 16.10.2002 regarding the
complaint about their promotion.
12) Accordingly, the appellant and other promotees appeared before the
Special Secretary on 16.10.2002 and explained to him about their
eligibility under the Rules for promotion to the post of Research Assistant
Grade B.
13) After considering the matter, vide order dated 10.12.2002, the
promotion of the appellant was cancelled on the ground that he did not
fulfill the requisite qualification and experience and that he was not
promoted in accordance with Rules.
14) Challenging the order of cancellation of promotion, the appellant
along with one Sohan Lal, who was also promoted with him, filed C.W.P. No.
19893 of 2002 before the High Court for quashing the order of cancellation
of promotion.
15) The High Court by order dated 01.04.2004 disposed of the petition
directing the Department to examine the case of the appellant in view of
the decision of the High Court rendered in C.W.P. No. 19906 of 2002 (Kuldip
Singh & Ors. Vs. State of Punjab & Anr.).
16) In compliance with the directions issued by the High Court, the claim
of the appellant was reconsidered and the same was rejected on the ground
that he did not fulfill the prescribed qualification for promotion.
17) By order dated 13.01.2006, the promotion of the appellant was
cancelled and was reverted to the post from which he was promoted.
18) Challenging the said cancellation order, the appellant filed writ
petition being C.W.P. No. 1066 of 2006 before the High Court. By impugned
judgment dated 31.10.2008, the High Court dismissed the petition filed by
the appellant herein.
19) Aggrieved by the said judgment, the appellant has filed this appeal
by way of special leave before this Court.
20) Heard Ms. Niharika Ahluwalia, learned counsel for the appellant and
Ms. Disha Singh, learned counsel for the respondents.
21) Learned Counsel for the appellant while assailing the legality and
correctness of the impugned order made three-fold submissions.
22) In the first place, learned counsel contended that the High Court
erred in dismissing the appellant's writ petition and thereby erred in
upholding the order impugned in the writ petition by which the appellant's
promotion to the post of Research Assistant Grade B was cancelled and he
was reverted to the post of Silt Observer.
23) In the second place, learned counsel contended that when admittedly
the appellant had possessed the requisite qualification as provided in Rule
10 (1)(b)(i) and (2) for the next promotional post of Research Assistant
Grade B and further the competent authority had duly recommended the
appellant's case for promotion to the post of Research Assistant Grade B
pursuant to which the appellant was promoted and worked on the promoted
post from 14.12.2001 to 10.12.2002, there was no justification on the part
of the State to have cancelled the appellant's promotion order and revert
him to his original post.
24) In the third place, learned counsel contended that when the State
merged the Grade C post in Grade B and after merger, did not amend the
Rules by providing any separate qualifications for the posts in question
nor did provide any other requirement by making any amendment in the
existing rules, there was no reason much less justifiable reason for the
State to cancel the appellant's promotion.
25) In reply, learned counsel for the respondents supported the reasoning
and the conclusion arrived at by the High Court and prayed for its
upholding.
26) Having heard the learned counsel for the parties and on perusal of
the record of the case, we find force in the submissions urged by the
learned counsel for the appellant.
27) The short question that arises in this appeal is whether the State
was justified in cancelling the promotion order of the appellant by which
he was promoted to the post of Research Assistant Grade B from the post of
Silt Analyst/Silt observer?
28) In our considered opinion, the State was not justified in cancelling
the appellant's promotion order as also the High Court was not justified in
upholding the cancellation order.
29) This we say for more than one reason. First, it is an admitted case
that the appellant being an in service candidate, his case for promotion
from the post of Silt Observer/Analyst to the next promotional post of
"Research Assistant Grade B” was required to be considered as an in service
candidate as provided in Rule 10. Second, it was again an admitted case
that the appellant was working as a Silt Observer/Analyst and in addition
to the duties assigned to this post, he was also performing the duties of
Research Assistant Grade B as per the directives of the office. Third, the
appellant had admittedly fulfilled the eligibility criteria and
qualification prescribed in Rule 10 (1)(b)(i) and (2) as also the
qualifications prescribed for appointment to the post in question for
direct recruits. Fourth, the competent authorities had also recommended the
case of the promotion of the appellant certifying that the appellant is fit
for promotion. Fifth, the appellant worked on the promotional post and
performed the duties assigned to the promotional post from 14.12.2001 till
10.12.2002. Sixth, since the Government, despite merging the Grade C post
in Grade-B post, did not amend the Rules and on the other hand continued
with the un-amended Rules for filling the vacancies including vacancies by
promotion, hence, the case of the appellant had to be considered in the
light of the requirement of the Rules. In other words, it was necessary
for the State to have made appropriate amendments in the Rules after merger
of one post into another, but so long as this exercise was not done by the
State, the employees, who had otherwise fulfilled the requirement
prescribed in the existing Rules for consideration of their cases for
promotion, they could not be denied the benefits flowing from the Rules and
lastly, in the absence of any adverse entries or/and record of the
appellant and further in the absence of any allegation made against the
appellant for suppressing any material information, we do not find any
justification on the part of the State to have recalled the promotional
order of the appellant on the basis of some complaints said to have been
made by someone after a long lapse of time which also had no factual or/and
legal foundation.
30) Learned Counsel for the respondents, however, contended that the
appellant did not possess the requisite qualifications that were necessary
for the promotional post as prescribed in the advertisement and hence
cancellation of the appellant’s promotion was appropriate. We do not find
any force in this contention.
31) As held supra, the appellant had fulfilled the necessary criteria
prescribed in Rule 10. It was, in our view, sufficient compliance for the
in service candidate. Anything prescribed in the advertisement, which was
de hors the Rules was bad in law.
32) In the light of foregoing discussion, we do not agree with the view
taken by the High Court and accordingly allow the appeal and set aside the
impugned order of the High Court and, in consequence, allow the writ
petition filed by the appellant (writ petitioner) and set aside the order
dated 10.12.2002 (Annexure P-9) impugned in the writ petition.
33) As a consequence, the appellant is restored to the promotional post
of Research Assistance Grade B. If the appellant has discharged the duties
of Research Assistant Grade B after the cancellation of his promotional
order for any reason in addition to his duties assigned during the period
in question then he would be entitled to claim the salary of the
promotional post from the date of cancellation order after adjusting his
salary, which he has received as Silt Observer during such period.
………...................................J.
[J. CHELAMESWAR]
…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
September 19, 2016
-----------------------
17
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2127 OF 2009
Raminder Singh …….Appellant(s)
VERSUS
State of Punjab & Anr. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed against the final judgment and order dated
31.10.2008 passed by the High Court of Punjab and Haryana at Chandigarh in
Civil Writ Petition No. 1066 of 2006 whereby the High Court dismissed the
writ petition filed by the appellant herein against the office order dated
13.01.2006 by which the promotion of the appellant was cancelled and he was
reverted from the post of Research Assistant Grade B to Silt Observer.
2) Facts of the case need mention, in brief, infra to appreciate the
controversy involved in the appeal.
3) The appellant was recruited as Silt Observer in the year 1986 in
Irrigation and Power Research Institute, Amritsar, which is a Branch of
Public Works Department, Government of Punjab. At the time of his
appointment, his qualification was matriculation with Science subjects and
B.A. with Economics and Political Science. While working as Silt Observer,
the appellant was performing the duties of Research Assistant Grade B, as
per the directives of his superiors.
4) The State of Punjab promulgated the Punjab Public Works Department
(Irrigation Branch), Research Assistants’ State Service Class III Rules,
1956 (in short “the Rules”). The Rules, inter alia, provides three Grades
in the cadre of “Research Assistant” in Public Works Department (Irrigation
Branch), namely, Research Assistant Grade A, Research Assistant Grade B and
Research Assistant Grade C. Rule 10 with which we are concerned here deals
with the Method of Recruitment and appointment to various Grades of the
Service, which reads as under:
“10. Method of recruitment –
Appointment to the various grades of the Service shall be made-
(a) in the case of Research Assistants, Grade A:-
by promotion from amongst Research Assistants Grade B; or
by transfer of an official already in the service of the Government of a
State or of the Union; or
by direct appointment;
(b) in the case of Research Assistants, Grade B:-
by promotion from amongst Research Assistants Grade C; or
by transfer of an official already in service of the Government of a State
or of the Union; or
by direct appointment;
(c) in the case of Research Assistants, Grade C:-
by promotion from amongst Analysts or Silt Analysts or other ranks already
working in the Institute or Laboratories under the control of Institute,
provided the official so promoted is reported to be fit for research work
expected of Research Assistants and has worked in the Institute or
Laboratories for at least 5 years and has also passed the F.Sc. examination
of a recognized university; or
by transfer of an official already in service of the Government of a State
or of the Union; or
by direct appointment.
For promotion from Grade C to Grade B and from Grade B to Grade A, a
Research Assistant must have crossed the efficiency bar in the Grade from
which he is promoted.
Appointment to any post to be filled either by the promotion of officials
already in the Service or by the transfer of officials already in the
service of the Government of a State or of the Union shall be made purely
by selection and no official shall have any claim to such appointment as of
right.
Note : When any vacancy arises and the recruitment is to take place through
the Punjab Public Service Commission the method of recruitment shall always
be decided in consultation with them.”
5) In the year 1967-68, the State of Punjab abolished the post of
Research Assistant Grade C and it was merged in Research Assistant Grade B.
Despite merger of the post, Rules were not amended.
6) On 21.06.2001, respondent No.2 invited applications for filling up
the post of Research Assistant Grade B from amongst the cadre of research
staff working as Silt Analyst and other categories in the Irrigation
laboratories. The said invitation specifically mentions that the
officials, who are employed as Silt Analyst or Observer should be working
in the Institute or laboratories of the Department of Irrigation for at
least 5 years and has also passed F.Sc. examination or equivalent.
7) In response to the said invitation, the appellant submitted his
application without concealing any fact or qualification along with the
attested photocopies of his educational qualification certificates.
8) On consideration of his application and the experience, the Research
Officer, Chemistry Branch of the Irrigation and Power Research Institute,
Amritsar recommended the case of the appellant for being promoted as
Research Assistant Grade B. After consideration, the appellant was promoted
as Research Assistant Grade B on 14.12.2001 and accordingly his pay and
other allowances were also fixed. Since 14.12.2001, the appellant was
continuing to work as Research Assistant Grade B.
9) After the promotions, some complaints were received by the Punjab
Government regarding the promotion of the appellant as well as other
promotions made subsequently and the Under Secretary, Irrigation
Department, Government of Punjab asked for the detailed comments and
records from respondent No.2 regarding promotions made by him during the
period 2001-2002.
10) On 24.05.2002, respondent No.2 submitted detailed comments to the
Under Secretary whereby the promotions of the appellant and others were
explained.
11) On 10.10.2002, the Under Secretary, Irrigation Department, Government
of Punjab directed the appellant and seven other promotees to appear before
the Special Secretary, Irrigation Department, on 16.10.2002 regarding the
complaint about their promotion.
12) Accordingly, the appellant and other promotees appeared before the
Special Secretary on 16.10.2002 and explained to him about their
eligibility under the Rules for promotion to the post of Research Assistant
Grade B.
13) After considering the matter, vide order dated 10.12.2002, the
promotion of the appellant was cancelled on the ground that he did not
fulfill the requisite qualification and experience and that he was not
promoted in accordance with Rules.
14) Challenging the order of cancellation of promotion, the appellant
along with one Sohan Lal, who was also promoted with him, filed C.W.P. No.
19893 of 2002 before the High Court for quashing the order of cancellation
of promotion.
15) The High Court by order dated 01.04.2004 disposed of the petition
directing the Department to examine the case of the appellant in view of
the decision of the High Court rendered in C.W.P. No. 19906 of 2002 (Kuldip
Singh & Ors. Vs. State of Punjab & Anr.).
16) In compliance with the directions issued by the High Court, the claim
of the appellant was reconsidered and the same was rejected on the ground
that he did not fulfill the prescribed qualification for promotion.
17) By order dated 13.01.2006, the promotion of the appellant was
cancelled and was reverted to the post from which he was promoted.
18) Challenging the said cancellation order, the appellant filed writ
petition being C.W.P. No. 1066 of 2006 before the High Court. By impugned
judgment dated 31.10.2008, the High Court dismissed the petition filed by
the appellant herein.
19) Aggrieved by the said judgment, the appellant has filed this appeal
by way of special leave before this Court.
20) Heard Ms. Niharika Ahluwalia, learned counsel for the appellant and
Ms. Disha Singh, learned counsel for the respondents.
21) Learned Counsel for the appellant while assailing the legality and
correctness of the impugned order made three-fold submissions.
22) In the first place, learned counsel contended that the High Court
erred in dismissing the appellant's writ petition and thereby erred in
upholding the order impugned in the writ petition by which the appellant's
promotion to the post of Research Assistant Grade B was cancelled and he
was reverted to the post of Silt Observer.
23) In the second place, learned counsel contended that when admittedly
the appellant had possessed the requisite qualification as provided in Rule
10 (1)(b)(i) and (2) for the next promotional post of Research Assistant
Grade B and further the competent authority had duly recommended the
appellant's case for promotion to the post of Research Assistant Grade B
pursuant to which the appellant was promoted and worked on the promoted
post from 14.12.2001 to 10.12.2002, there was no justification on the part
of the State to have cancelled the appellant's promotion order and revert
him to his original post.
24) In the third place, learned counsel contended that when the State
merged the Grade C post in Grade B and after merger, did not amend the
Rules by providing any separate qualifications for the posts in question
nor did provide any other requirement by making any amendment in the
existing rules, there was no reason much less justifiable reason for the
State to cancel the appellant's promotion.
25) In reply, learned counsel for the respondents supported the reasoning
and the conclusion arrived at by the High Court and prayed for its
upholding.
26) Having heard the learned counsel for the parties and on perusal of
the record of the case, we find force in the submissions urged by the
learned counsel for the appellant.
27) The short question that arises in this appeal is whether the State
was justified in cancelling the promotion order of the appellant by which
he was promoted to the post of Research Assistant Grade B from the post of
Silt Analyst/Silt observer?
28) In our considered opinion, the State was not justified in cancelling
the appellant's promotion order as also the High Court was not justified in
upholding the cancellation order.
29) This we say for more than one reason. First, it is an admitted case
that the appellant being an in service candidate, his case for promotion
from the post of Silt Observer/Analyst to the next promotional post of
"Research Assistant Grade B” was required to be considered as an in service
candidate as provided in Rule 10. Second, it was again an admitted case
that the appellant was working as a Silt Observer/Analyst and in addition
to the duties assigned to this post, he was also performing the duties of
Research Assistant Grade B as per the directives of the office. Third, the
appellant had admittedly fulfilled the eligibility criteria and
qualification prescribed in Rule 10 (1)(b)(i) and (2) as also the
qualifications prescribed for appointment to the post in question for
direct recruits. Fourth, the competent authorities had also recommended the
case of the promotion of the appellant certifying that the appellant is fit
for promotion. Fifth, the appellant worked on the promotional post and
performed the duties assigned to the promotional post from 14.12.2001 till
10.12.2002. Sixth, since the Government, despite merging the Grade C post
in Grade-B post, did not amend the Rules and on the other hand continued
with the un-amended Rules for filling the vacancies including vacancies by
promotion, hence, the case of the appellant had to be considered in the
light of the requirement of the Rules. In other words, it was necessary
for the State to have made appropriate amendments in the Rules after merger
of one post into another, but so long as this exercise was not done by the
State, the employees, who had otherwise fulfilled the requirement
prescribed in the existing Rules for consideration of their cases for
promotion, they could not be denied the benefits flowing from the Rules and
lastly, in the absence of any adverse entries or/and record of the
appellant and further in the absence of any allegation made against the
appellant for suppressing any material information, we do not find any
justification on the part of the State to have recalled the promotional
order of the appellant on the basis of some complaints said to have been
made by someone after a long lapse of time which also had no factual or/and
legal foundation.
30) Learned Counsel for the respondents, however, contended that the
appellant did not possess the requisite qualifications that were necessary
for the promotional post as prescribed in the advertisement and hence
cancellation of the appellant’s promotion was appropriate. We do not find
any force in this contention.
31) As held supra, the appellant had fulfilled the necessary criteria
prescribed in Rule 10. It was, in our view, sufficient compliance for the
in service candidate. Anything prescribed in the advertisement, which was
de hors the Rules was bad in law.
32) In the light of foregoing discussion, we do not agree with the view
taken by the High Court and accordingly allow the appeal and set aside the
impugned order of the High Court and, in consequence, allow the writ
petition filed by the appellant (writ petitioner) and set aside the order
dated 10.12.2002 (Annexure P-9) impugned in the writ petition.
33) As a consequence, the appellant is restored to the promotional post
of Research Assistance Grade B. If the appellant has discharged the duties
of Research Assistant Grade B after the cancellation of his promotional
order for any reason in addition to his duties assigned during the period
in question then he would be entitled to claim the salary of the
promotional post from the date of cancellation order after adjusting his
salary, which he has received as Silt Observer during such period.
………...................................J.
[J. CHELAMESWAR]
…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
September 19, 2016
-----------------------
17
